TURNER v. ROGERS

Opinion of the Court

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notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 10–10

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MICHAEL D. TURNER, PETITIONER v. REBECCA L.

ROGERS ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

SOUTH CAROLINA

[June 20, 2011]

JUSTICE BREYER delivered the opinion of the Court.

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

I

A South Carolina family courts enforce their child support orders in part through civil contempt proceedings. Each month the family court clerk reviews outstanding child support orders, identifies those in which the supporting parent has fallen more than five days behind, and sends that parent an order to “show cause” why he should not be held in contempt. S. C. Rule Family Ct. 24 (2011). The “show cause” order and attached affidavit refer to the relevant child support order, identify the amount of the arrearage, and set a date for a court hearing. At the hearing that parent may demonstrate that he is not in contempt, say, by showing that he is not able to make the required payments. See Moseley v. Mosier, 279 S. C. 348, 351, 306 S. E. 2d 624, 626 (1983) (“When the parent is unable to make the required payments, he is not in contempt”). If he fails to make the required showing, the court may hold him in civil contempt. And it may require that he be imprisoned unless and until he purges himself of contempt by making the required child support payments (but not for more than one year regardless). See S. C. Code Ann. §63–3–620 (Supp. 2010) (imprisonment for up to one year of “adult who wilfully violates” a court order); Price v. Turner, 387 S. C. 142, 145, 691 S. E. 2d 470, 472 (2010) (civil contempt order must permit purging of contempt through compliance).

B

In June 2003 a South Carolina family court entered an order, which (as amended) required petitioner, Michael Turner, to pay $51.73 per week to respondent, Rebecca Rogers, to help support their child. (Rogers’ father, Larry Price, currently has custody of the child and is also a respondent before this Court.) Over the next three years, Turner repeatedly failed to pay the amount due and was held in contempt on five occasions. The first four times he was sentenced to 90 days’ imprisonment, but he ultimately paid the amount due (twice without being jailed, twice after spending two or three days in custody). The fifth time he did not pay but completed a 6-month sentence.

After his release in 2006 Turner remained in arrears. On March 27, 2006, the clerk issued a new “show cause” order. And after an initial postponement due to Turner’s failure to appear, Turner’s civil contempt hearing took place on January 3, 2008. Turner and Rogers were present, each without representation by counsel.

The hearing was brief. The court clerk said that Turner was $5,728.76 behind in his payments. The judge asked Turner if there was “anything you want to say.” Turner replied, “Well, when I first got out, I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and everything. I just hope that you give me a chance. I don’t know what else to say. I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold to me.” App. to Pet. for Cert. 17a. The judge then said, “[o]kay,” and asked Rogers if she had anything to say. Ibid. After a brief discussion of federal benefits, the judge stated, “If there’s nothing else, this will be the Order of the Court. I find the Defendant in willful contempt. I’m [going to] sentence him to twelve months in the Oconee County Detention Center. He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release. I’ve also placed a lien on any SSI or other benefits.” Id., at 18a. The judge added that Turner would not receive good-time or work credits, but “[i]f you’ve got a job, I’ll make you eligible for work release.” Ibid. When Turner asked why he could not receive good-time or work credits, the judge said, “[b]ecause that’s my ruling.” Ibid.

The court made no express finding concerning Turner’s ability to pay his arrearage (though Turner’s wife had voluntarily submitted a copy of Turner’s application for disability benefits, cf. post, at 7, n. 3 (THOMAS, J., dissenting); App. 135a–136a). Nor did the judge ask any followup questions or otherwise address the ability-to-pay issue. After the hearing, the judge filled out a prewritten form titled “Order for Contempt of Court,” which included the statement: “Defendant (was) (was not) gainfully employed and/or (had) (did not have) the ability to make these support payments when due.” Id., at 60a, 61a. But the judge left this statement as is without indicating whether Turner was able to make support payments.

C

While serving his 12-month sentence, Turner, with the help of pro bono counsel, appealed. He claimed that the Federal Constitution entitled him to counsel at his contempt hearing. The South Carolina Supreme Court decided Turner’s appeal after he had completed his sentence. And it rejected his “right to counsel” claim. The court pointed out that civil contempt differs significantly from criminal contempt. The former does not require all the “constitutional safeguards” applicable in criminal proceedings. 387 S. C., at 145, 691 S. E. 2d, at 472. And the right to government-paid counsel, the Supreme Court held, was one of the “safeguards” not required. Ibid.

Turner sought certiorari. In light of differences among state courts (and some federal courts) on the applicability of a “right to counsel” in civil contempt proceedings enforcing child support orders, we granted the writ. Compare, e.g., Pasqua v. Council, 186 N. J. 127, 141–146, 892 A. 2d 663, 671–674 (2006); Black v. Division of Child Support Enforcement, 686 A. 2d 164, 167–168 (Del. 1996); Mead v. Batchlor, 435 Mich. 480, 488–505, 460 N. W. 2d 493, 496– 504 (1990); Ridgway v. Baker, 720 F. 2d 1409, 1413–1415 (CA5 1983) (all finding a federal constitutional right to counsel for indigents facing imprisonment in a child support civil contempt proceeding), with Rodriguez v. Eighth Judicial Dist. Ct., County of Clark, 120 Nev. 798, 808–813, 102 P. 3d 41, 48–51 (2004) (no right to counsel in civil contempt hearing for nonsupport, except in “rarest of cases”); Andrews v. Walton, 428 So. 2d 663, 666 (Fla. 1983) (“no circumstances in which a parent is entitled to courtappointed counsel in a civil contempt proceeding for failure to pay child support”). Compare also In re Grand Jury Proceedings, 468 F. 2d 1368, 1369 (CA9 1972) (per curiam) (general right to counsel in civil contempt proceedings), with Duval v. Duval, 114 N. H. 422, 425–427, 322 A. 2d 1, 3–4 (1974) (no general right, but counsel may be required on case-by-case basis).

II

Respondents argue that this case is moot. See Massachusetts v. Mellon, 262 U. S. 447, 480 (1923) (Article III judicial power extends only to actual “cases” and “controversies”); Alvarez v. Smith, 558 U. S. __, __ (2009) (slip op., at 4) (“An actual controversy must be extant at all stages of review” (internal quotation marks omitted)). They point out that Turner completed his 12-month prison sentence in 2009. And they add that there are no “collateral consequences” of that particular contempt determination that might keep the dispute alive. Compare Sibron v. New York, 392 U. S. 40, 55–56 (1968) (release from prison does not moot a criminal case because “collateral consequences” are presumed to continue), with Spencer v. Kemna, 523 U. S. 1, 14 (1998) (declining to extend the presumption to parole revocation).

The short, conclusive answer to respondents’ mootness claim, however, is that this case is not moot because it falls within a special category of disputes that are “capable of repetition” while “evading review.” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). A dispute falls into that category, and a case based on that dispute remains live, if “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam).

Our precedent makes clear that the “challenged action,” Turner’s imprisonment for up to 12 months, is “in its duration too short to be fully litigated” through the state courts (and arrive here) prior to its “expiration.” See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 774 (1978) (internal quotation marks omitted) (18-month period too short); Southern Pacific Terminal Co., supra, at 514–516 (2-year period too short). At the same time, there is a more than “reasonable” likelihood that Turner will again be “subjected to the same action.” As we have pointed out, supra, at 2–3, Turner has frequently failed to make his child support payments. He has been the subject of several civil contempt proceedings. He has been imprisoned on several of those occasions. Within months of his release from the imprisonment here at issue he was again the subject of civil contempt proceedings. And he was again imprisoned, this time for six months. As of December 9, 2010, Turner was $13,814.72 in arrears, and another contempt hearing was scheduled for May 4, 2011. App. 104a; Reply Brief for Petitioner 3, n. 1. These facts bring this case squarely within the special category of cases that are not moot because the underlying dispute is “capable of repetition, yet evading review.” See, e.g., Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546–547 (1976) (internal quotation marks omitted).

Moreover, the underlying facts make this case unlike DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam), and St. Pierre v. United States, 319 U. S. 41 (1943) (per curiam), two cases that respondents believe require us to find this case moot regardless. DeFunis was moot, but that is because the plaintiff himself was unlikely to again suffer the conduct of which he complained (and others likely to suffer from that conduct could bring their own lawsuits). Here petitioner himself is likely to suffer future imprisonment.

St. Pierre was moot because the petitioner (a witness held in contempt and sentenced to five months’ imprisonment) had failed to “apply to this Court for a stay” of the federal-court order imposing imprisonment. 319 U. S., at 42–43. And, like the witness in St. Pierre, Turner did not seek a stay of the contempt order requiring his imprisonment. But this case, unlike St. Pierre, arises out of a state-court proceeding. And respondents give us no reason to believe that we would have (or that we could have) granted a timely request for a stay had one been made. Cf. 28 U. S. C. §1257 (granting this Court jurisdiction to review final state-court judgments). In Sibron, we rejected a similar “mootness” argument for just that reason. 392 U. S., at 53, n. 13. And we find this case similar in this respect to Sibron, not to St. Pierre.

III

A

We must decide whether the Due Process Clause grants an indigent defendant, such as Turner, a right to stateappointed counsel at a civil contempt proceeding, which may lead to his incarceration. This Court’s precedents provide no definitive answer to that question. This Court has long held that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case. Gideon v. Wainwright, 372 U. S. 335 (1963). And we have held that this same rule applies to criminal contempt proceedings (other than summary proceedings). United States v. Dixon, 509 U. S. 688, 696 (1993); Cooke v. United States, 267 U. S. 517, 537 (1925).

But the Sixth Amendment does not govern civil cases. Civil contempt differs from criminal contempt in that it seeks only to “coerc[e] the defendant to do” what a court had previously ordered him to do. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 442 (1911). A court may not impose punishment “in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.” Hicks v. Feiock, 485 U. S. 624, 638, n. 9 (1988). And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free. Id., at 633 (he “carr[ies] the keys of [his] prison in [his] own pockets” (internal quotation marks omitted)).

Consequently, the Court has made clear (in a case not involving the right to counsel) that, where civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case. Id., at 637–641 (State may place the burden of proving inability to pay on the defendant).

This Court has decided only a handful of cases that more directly concern a right to counsel in civil matters. And the application of those decisions to the present case is not clear. On the one hand, the Court has held that the Fourteenth Amendment requires the State to pay for representation by counsel in a civil “juvenile delinquency” proceeding (which could lead to incarceration). In re Gault, 387 U. S. 1, 35–42 (1967). Moreover, in Vitek v. Jones, 445 U. S. 480, 496–497 (1980), a plurality of four Members of this Court would have held that the Fourteenth Amendment requires representation by counsel in a proceeding to transfer a prison inmate to a state hospital for the mentally ill. Further, in Lassiter v. Department of Social Servs. of Durham Cty., 452 U. S. 18 (1981), a case that focused upon civil proceedings leading to loss of parental rights, the Court wrote that the “pre-eminent generalization that emerges from this Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” Id., at 25. And the Court then drew from these precedents “the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Id., at 26–27.

On the other hand, the Court has held that a criminal offender facing revocation of probation and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing. Gagnon v. Scarpelli, 411 U. S. 778 (1973); see also Middendorf v. Henry, 425 U. S. 25 (1976) (no due process right to counsel in summary court-martial proceedings). And, at the same time, Gault, Vitek, and Lassiter are readily distinguishable. The civil juvenile delinquency proceeding at issue in Gault was “little different” from, and “comparable in seriousness” to, a criminal prosecution. 387 U. S., at 28, 36. In Vitek, the controlling opinion found no right to counsel. 445 U. S., at 499–500 (Powell, J., concurring in part) (assistance of mental health professionals sufficient). And the Court’s statements in Lassiter constitute part of its rationale for denying a right to counsel in that case. We believe those statements are best read as pointing out that the Court previously had found a right to counsel “only” in cases involving incarceration, not that a right to counsel exists in all such cases (a position that would have been difficult to reconcile with Gagnon).

B

Civil contempt proceedings in child support cases constitute one part of a highly complex system designed to assure a noncustodial parent’s regular payment of funds typically necessary for the support of his children. Often the family receives welfare support from a stateadministered federal program, and the State then seeks reimbursement from the noncustodial parent. See 42 U. S. C. §§608(a)(3) (2006 ed., Supp. III), 656(a)(1) (2006 ed.); S. C. Code Ann. §§43–5–65(a)(1), (2) (2010 Cum. Supp.). Other times the custodial parent (often the mother, but sometimes the father, a grandparent, or another person with custody) does not receive government benefits and is entitled to receive the support payments herself.

The Federal Government has created an elaborate procedural mechanism designed to help both the government and custodial parents to secure the payments to which they are entitled. See generally Blessing v. Freestone, 520 U. S. 329, 333 (1997) (describing the “interlocking set of cooperative federal-state welfare programs” as they relate to child support enforcement); 45 CFR pt. 303 (2010) (prescribing standards for state child support agencies). These systems often rely upon wage withholding, expedited procedures for modifying and enforcing child support orders, and automated data processing. 42 U. S. C. §§666(a), (b), 654(24). But sometimes States will use contempt orders to ensure that the custodial parent receives support payments or the government receives reimbursement. Although some experts have criticized this last-mentioned procedure, and the Federal Government believes that “the routine use of contempt for nonpayment of child support is likely to be an ineffective strategy,” the Government also tells us that “coercive enforcement remedies, such as contempt, have a role to play.” Brief for United States as Amicus Curiae 21–22, and n. 8 (citing Dept. of Health and Human Services, National Child Support Enforcement, Strategic Plan: FY 2005–2009, pp. 2, 10). South Carolina, which relies heavily on contempt proceedings, agrees that they are an important tool.

We here consider an indigent’s right to paid counsel at such a contempt proceeding. It is a civil proceeding. And we consequently determine the “specific dictates of due process” by examining the “distinct factors” that this Court has previously found useful in deciding what specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (considering fairness of an administrative proceeding). As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid. See also Lassiter, 452 U. S., at 27–31 (applying the Mathews framework).

The “private interest that will be affected” argues strongly for the right to counsel that Turner advocates. That interest consists of an indigent defendant’s loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom “from bodily restraint,” lies “at the core of the liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992). And we have made clear that its threatened loss through legal proceedings demands “due process protection.” Addington v. Texas, 441 U. S. 418, 425 (1979). Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt, Hicks, 485 U. S., at 635, n. 7, reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding. See, e.g., Dixon, 509 U. S., at 696 (proof beyond a reasonable doubt, protection from double jeopardy); Codispoti v. Pennsylvania, 418 U. S. 506, 512– 513, 517 (1974) (jury trial where the result is more than six months’ imprisonment). And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often. See E. Sorensen, L. Sousa, & S. Schaner, Assessing Child Support Arrears in Nine Large States and the Nation 22 (2007) (prepared by The Urban Institute), online at http://aspe.hhs.gov/hsp/07/assessing-CS-debt/report.pdf (as visited June 16, 2011, and available in Clerk of Court’s case file); id., at 23 (“research suggests that many obligors who do not have reported quarterly wages have relatively limited resources”); Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison, 18 Cornell J. L. & Pub. Pol’y 95, 117 (2008). See also, e.g., McBride v. McBride, 334 N. C. 124, 131, n. 4, 431 S. E. 2d 14, 19, n. 4 (1993) (surveying North Carolina contempt orders and finding that the “failure of trial courts to make a determination of a contemnor’s ability to comply is not altogether infrequent”).

On the other hand, the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened. See Gagnon, 411 U. S. 778. And in determining whether the Clause requires a right to counsel here, we must take account of opposing interests, as well as consider the probable value of “additional or substitute procedural safeguards.” Mathews, supra, at 335.

Doing so, we find three related considerations that, when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before us.

First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case. Federal law, for example, requires a criminal defendant to provide information showing that he is indigent, and therefore entitled to statefunded counsel, before he can receive that assistance. See 18 U. S. C. §3006A(b).

Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. See Dept. of Health and Human Services, Office of Child Support Enforcement, Understanding Child Support Debt: A Guide to Exploring Child Support Debt in Your State 5, 6 (2004) (51% of nationwide arrears, and 58% in South Carolina, are not owed to the government). The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its order through contempt. Cf. Tr. Contempt Proceedings (Sept. 14, 2005), App. 44a–45a (Rogers asks court, in light of pattern of nonpayment, to confine Turner). She may be able to provide the court with significant information. Cf. id., at 41a–43a (Rogers describes where Turner lived and worked). And the proceeding is ultimately for her benefit.

A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.” Gagnon, supra, at 787. Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in our analysis. Cf. post, at 10–12 (opinion of THOMAS, J.).

Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” Mathews, 424 U. S., at 335, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. See Tr. of Oral Arg. 26–27; Brief for United States as Amicus Curiae 23–25. In presenting these alternatives, the Government draws upon considerable experience in helping to manage statutorily mandated federal-state efforts to enforce child support orders. See supra, at 10. It does not claim that they are the only possible alternatives, and this Court’s cases suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient. Cf. Vitek, 445 U. S., at 499–500 (Powell, J., concurring in part) (provision of mental health professional). But the Government does claim that these alternatives can assure the “fundamental fairness” of the proceeding even where the State does not pay for counsel for an indigent defendant.

While recognizing the strength of Turner’s arguments, we ultimately believe that the three considerations we have just discussed must carry the day. In our view, a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned. We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. See supra, at 10. Those proceedings more closely resemble debt-collection proceedings. The government is likely to have counsel or some other competent representative. Cf. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938) (“[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel” (emphasis added)). And this kind of proceeding is not before us. Neither do we address what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate.” Gagnon, 411 U. S., at 788; see also Reply Brief for Petitioner 18–20 (not claiming that Turner’s case is especially complex).

IV

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.

We vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–10

_________________

MICHAEL D. TURNER, PETITIONER v. REBECCA L.

ROGERS ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

SOUTH CAROLINA

[June 20, 2011]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, and with whom THE CHIEF JUSTICE and JUSTICE ALITO join as to Parts I–B and II, dissenting.

The Due Process Clause of the Fourteenth Amendment does not provide a right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. Therefore, I would affirm. Although the Court agrees that appointed counsel was not required in this case, it nevertheless vacates the judgment of the South Carolina Supreme Court on a different ground, which the parties have never raised. Solely at the invitation of the United States as amicus curiae, the majority decides that Turner’s contempt proceeding violated due process because it did not include “alternative procedural safeguards.” Ante, at 15. Consistent with this Court’s longstanding practice, I would not reach that question.1

I

The only question raised in this case is whether the Due Process Clause of the Fourteenth Amendment creates a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. It does not. A

Under an original understanding of the Constitution, there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings. It certainly does not do so to the extent that the Due Process Clause requires “ ‘that our Government must proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions.’ ” Hamdi v. Rumsfeld, 542 U. S. 507, 589 (2004) (THOMAS, J., dissenting) (quoting In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting)). No one contends that South Carolina law entitles Turner to appointed counsel. Nor does any federal statute or constitutional provision so provide. Although the Sixth Amendment secures a right to “the Assistance of Counsel,” it does not apply here because civil contempt proceedings are not “criminal prosecutions.” U. S. Const., Amdt. 6; see ante, at 8. Moreover, as originally understood, the Sixth Amendment guaranteed only the “right to employ counsel, or to use volunteered services of counsel”; it did not require the court to appoint counsel in any circumstance. Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (SCALIA, J., dissenting) (slip op., at 2); see also United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, The Right to Counsel in American Courts 21–22, 28–29 (1955); F. Heller, The Sixth Amendment to the Constitution of the United States 110 (1951).

Appointed counsel is also not required in civil contempt proceedings under a somewhat broader reading of the Due Process Clause, which takes it to approve “ ‘[a] process of law, which is not otherwise forbidden, . . . [that] can show the sanction of settled usage.’ ” Weiss v. United States, 510 U. S. 163, 197 (1994) (SCALIA, J., concurring in part and concurring in judgment) (quoting Hurtado v. California, 110 U. S. 516, 528 (1884)). Despite a long history of courts exercising contempt authority, Turner has not identified any evidence that courts appointed counsel in those proceedings. See Mine Workers v. Bagwell, 512 U. S. 821, 831 (1994) (describing courts’ traditional assumption of “inherent contempt authority”); see also 4 W. Blackstone, Commentaries on the Laws of England 280–285 (1769) (describing the “summary proceedings” used to adjudicate contempt). Indeed, Turner concedes that contempt proceedings without appointed counsel have the blessing of history. See Tr. of Oral Arg. 15–16 (admitting that there is no historical support for Turner’s rule); see also Brief for Respondents 47–48.

B

Even under the Court’s modern interpretation of the Constitution, the Due Process Clause does not provide a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. Such a reading would render the Sixth Amendment right to counsel—as is currently understood—superfluous. it Moreover, it appears that even cases applying the Court’s modern interpretation of due process have not understood it to categorically require appointed counsel in circumstances outside those otherwise covered by the Sixth Amendment.

1

Under the Court’s current jurisprudence, the Sixth Amendment entitles indigent defendants to appointed counsel in felony cases and other criminal cases resulting in a sentence of imprisonment. See Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963); Argersinger v. Hamlin, 407 U. S. 25, 37 (1972); Scott v. Illinois, 440 U. S. 367, 373–374 (1979); Alabama v. Shelton, 535 U. S. 654, 662 (2002). Turner concedes that, even under these cases, the Sixth Amendment does not entitle him to appointed counsel. See Reply Brief for Petitioner 12 (acknowledging that “civil contempt is not a ‘criminal prosecution’ within the meaning of the Sixth Amendment”). He argues instead that “the right to the assistance of counsel for persons facing incarceration arises not only from the Sixth Amendment, but also from the requirement of fundamental fairness under the Due Process Clause of the Fourteenth Amendment.” Brief for Petitioner 28. In his view, this Court has relied on due process to “rejec[t] formalistic distinctions between criminal and civil proceedings, instead concluding that incarceration or other confinement triggers the right to counsel.” Id., at 33.

But if the Due Process Clause created a right to appointed counsel in all proceedings with the potential for detention, then the Sixth Amendment right to appointed counsel would be unnecessary. Under Turner’s theory, every instance in which the Sixth Amendment guarantees a right to appointed counsel is covered also by the Due Process Clause. The Sixth Amendment, however, is the only constitutional provision that even mentions the assistance of counsel; the Due Process Clause says nothing about counsel. Ordinarily, we do not read a general provision to render a specific one superfluous. Cf. Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992) (“[I]t is a commonplace of statutory construction that the specific governs the general”). The fact that one constitutional provision expressly provides a right to appointed counsel in specific circumstances indicates that the Constitution does not also sub silentio provide that right far more broadly in another, more general, provision. Cf. Albright v. Oliver, 510 U. S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims” (internal quotation marks omitted)); id., at 281 (KENNEDY, J., concurring in judgment) (“I agree with the plurality that an allegation of arrest without probable cause must be analyzed under the Fourth Amendment without reference to more general considerations of due process”); Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. ___, ___ (2010) (opinion of SCALIA, J.) (slip op., at 16) (applying Albright to the Takings Clause).

2

Moreover, contrary to Turner’s assertions, the holdings in this Court’s due process decisions regarding the right to counsel are actually quite narrow. The Court has never found in the Due Process Clause a categorical right to appointed counsel outside of criminal prosecutions or proceedings “functionally akin to a criminal trial.” Gagnon v. Scarpelli, 411 U. S. 778, 789, n. 12 (1973) (discussing In re Gault, 387 U. S. 1 (1967)). This is consistent with the conclusion that the Due Process Clause does not expand the right to counsel beyond the boundaries set by the Sixth Amendment.

After countless factors weighed, mores evaluated, and practices surveyed, the Court has not determined that due process principles of fundamental fairness categorically require counsel in any context outside criminal proceedings. See, e.g., Lassiter v. Department of Social Servs. of Durham Cty., 452 U. S. 18, 31–32 (1981); Wolff v. McDonnell, 418 U. S. 539, 569–570 (1974); see also Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 307– 308, 320–326 (1985); Goss v. Lopez, 419 U. S. 565, 583 (1975). Even when the defendant’s liberty is at stake, the Court has not concluded that fundamental fairness requires that counsel always be appointed if the proceeding is not criminal.2 See, e.g., Scarpelli, supra, at 790 (probation revocation); Middendorf v. Henry, 425 U. S. 25, 48 (1976) (summary court-martial); Parham v. J. R., 442 U. S. 584, 599–600, 606–607, 610, n. 18 (1979) (commitment of minor to mental hospital); Vitek v. Jones, 445 U. S. 480, 497–500 (1980) (Powell, J., controlling opinion concurring in part) (transfer of prisoner to mental hospital). Indeed, the only circumstance in which the Court has found that due process categorically requires appointed counsel is juvenile delinquency proceedings, which the Court has described as “functionally akin to a criminal trial.” Scarpelli, supra, at 789, n. 12 (discussing In re Gault, supra); see ante, at 9.

Despite language in its opinions that suggests it could find otherwise, the Court’s consistent judgment has been that fundamental fairness does not categorically require appointed counsel in any context outside of criminal proceedings. The majority is correct, therefore, that the Court’s precedent does not require appointed counsel in the absence of a deprivation of liberty. Id., at 9–10. But a more complete description of this Court’s cases is that even when liberty is at stake, the Court has required appointed counsel in a category of cases only where it would have found the Sixth Amendment required it—in criminal prosecutions.

II

The majority agrees that the Constitution does not entitle Turner to appointed counsel. But at the invitation of the Federal Government as amicus curiae, the majority holds that his contempt hearing violated the Due Process Clause for an entirely different reason, which the parties have never raised: The family court’s procedures “were in adequate to ensure an accurate determination of [Turner’s] present ability to pay.” Brief for United States as Amicus Curiae 19 (capitalization and boldface type deleted); see ante, at 14–16. I would not reach this issue.

There are good reasons not to consider new issues raised for the first and only time in an amicus brief. As here, the new issue may be outside the question presented.3 See Pet. for Cert. i (“Whether . . . an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration”); see also ante, at 4–5 (identifying the conflict among lower courts as regarding “the right to counsel”). As here, the new issue may not have been addressed by, or even presented to, the state court. See 387 S. C. 142, 144, 691 S. E. 2d 470, 472 (2010) (describing the only question as whether “the Sixth and Fourteenth Amendments of the United States Constitution guarantee [Turner], as an indigent defendant in family court, the right to appointed counsel”). As here, the parties may not have preserved the issue, leaving the record undeveloped. See Tr. of Oral Arg. 49, 43 (“The record is insufficient” regarding alternative procedures because “[t]hey were raised for the very first time at the merits stage here; so, there’s been no development”); Brief for Respondents 63. As here, the parties may not address the new issue in this Court, leaving its boundaries untested. See Brief for Petitioner 27, n. 15 (reiterating that “[t]he particular constitutional violation that Turner challenges in this case is the failure of the family court to appoint counsel”); Brief for Respondents 62 (declining to address the Government’s argument because it is not “properly before this Court” (capitalization and boldface type deleted). Finally, as here, a party may even oppose the position taken by its allegedly supportive amicus. See Tr. of Oral Arg. 7–12, 14–15 (Turner’s counsel rejecting the Government’s argument that any procedures short of a categorical right to appointed counsel could satisfy due process); Reply Brief for Petitioner 14– 15.

Accordingly, it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less one raised only by an amicus. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”); Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam) (“[T]his is a court of final review and not first view” (internal quotation marks omitted)); United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981) (declining to consider an amicus’ argument “since it was not raised by either of the parties here or below” and was outside the grant of certiorari). This is doubly true when we review the decision of a state court and triply so when the new issue is a constitutional matter. See McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 434 (1940) (“[I]t is only in exceptional cases, and then only in cases coming from the federal courts, that [this Court] considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below”); Cardinale v. Louisiana, 394 U. S. 437, 438 (1969) (“[T]he Court will not decide federal constitutional issues raised here for the first time on review of state court decisions”).

The majority errs in moving beyond the question that was litigated below, decided by the state courts, petitioned to this Court, and argued by the parties here, to resolve a question raised exclusively in the Federal Government’s amicus brief. In some cases, the Court properly affirms a lower court’s judgment on an alternative ground or accepts the persuasive argument of an amicus on a question that the parties have raised. See, e.g., United States v. Tinklenberg, 563 U. S. ___, ___ (2011) (slip op., at 13). But it transforms a case entirely to vacate a state court’s judgment based on an alternative constitutional ground advanced only by an amicus and outside the question on which the petitioner sought (and this Court granted) review.

It should come as no surprise that the majority confines its analysis of the Federal Government’s new issue to acknowledging the Government’s “considerable experience” in the field of child support enforcement and then adopting the Government’s suggestions in toto. See ante, at 14–15. Perhaps if the issue had been preserved and briefed by the parties, the majority would have had alternative solutions or procedures to consider. See Tr. of Oral Arg. 43 (“[T]here’s been no development. We don’t know what other States are doing, the range of options out there”). The Federal Government’s interest in States’ child support enforcement efforts may give the Government a valuable perspective,4 but it does not overcome the strong reasons behind the Court’s practice of not considering new issues, raised and addressed only by an amicus, for the first time in this Court.

III

For the reasons explained in the previous two sections, I would not engage in the majority’s balancing analysis. But there is yet another reason not to undertake the Mathews v. Eldridge balancing test here. 424 U. S. 319 (1976). That test weighs an individual’s interest against that of the Government. Id., at 335 (identifying the opposing interest as “the Government’s interest”); Lassiter, 452 U. S., at 27 (same). It does not account for the interests of the child and custodial parent, who is usually the child’s mother. But their interests are the very reason for the child support obligation and the civil contempt proceedings that enforce it.

When fathers fail in their duty to pay child support, children suffer. See Cancian, Meyer, & Han, Child Support: Responsible Fatherhood and the Quid Pro Quo, 635 Annals Am. Acad. Pol. & Soc. Sci. 140, 153 (2011) (finding that child support plays an important role in reducing child poverty in single-parent homes); cf. Sorensen & Zibman, Getting to Know Poor Fathers Who Do Not Pay Child Support, 75 Soc. Serv. Rev. 420, 423 (2001) (finding that children whose fathers reside apart from them are 54 percent more likely to live in poverty than their fathers). Nonpayment or inadequate payment can press children and mothers into poverty. M. Garrison, The Goals and Limits of Child Support Policy, in Child Support: The Next Frontier 16 (J. Oldham & M. Melli eds. 2000); see also Dept. of Commerce, Census Bureau, T. Grall, Custodial Mothers and Fathers and Their Child Support: 2007, pp. 4–5 (2009) (hereinafter Custodial Mothers and Fathers) (reporting that 27 percent of custodial mothers lived in poverty in 2007).

The interests of children and mothers who depend on child support are notoriously difficult to protect. See, e.g., Hicks v. Feiock, 485 U. S. 624, 644 (1988) (O’Connor, J., dissenting) (“The failure of enforcement efforts in this area has become a national scandal” (internal quotation marks omitted)). Less than half of all custodial parents receive the full amount of child support ordered; 24 percent of those owed support receive nothing at all. Custodial Mothers and Fathers 7; see also Dept. of Health and Human Services, Office of Child Support Enforcement, FY 2008 Annual Report to Congress, App. III, Table 71 (showing national child support arrears of $105.5 billion in 2008). In South Carolina alone, more than 139,000 noncustodial parents defaulted on their child support obligations during 2008, and at year end parents owed $1.17 billion in total arrears. Id., App. III, Tables 73 and 71.

That some fathers subject to a child support agreement report little or no income “does not mean they do not have the ability to pay any child support.” Dept. of Health and Human Services, H. Sorensen, L. Sousa, & S. Schaner, Assessing Child Support Arrears in Nine Large States and the Nation 22 (2007) (prepared by The Urban Institute) (hereinafter Assessing Arrears). Rather, many “deadbeat dads”5 “opt to work in the underground economy” to “shield their earnings from child support enforcement efforts.” Mich. Sup. Ct., Task Force Report: The Underground Economy 10 (2010) (hereinafter Underground Economy). To avoid attempts to garnish their wages or otherwise enforce the support obligation, “deadbeats” quit their jobs, jump from job to job, become self-employed, work under the table, or engage in illegal activity.6 See Waller & Plotnick, Effective Child Support Policy for LowIncome Families: Evidence from Street Level Research, 20 J. Pol’y Analysis & Mgmt. 89, 104 (2001); Assessing Arrears 22–23.

Because of the difficulties in collecting payment through traditional enforcement mechanisms, many States also use civil contempt proceedings to coerce “deadbeats” into paying what they owe. The States that use civil contempt with the threat of detention find it a “highly effective” tool for collecting child support when nothing else works. Compendium of Responses Collected by the U. S. Dept. of Health and Human Services Office of Child Support Enforcement (Dec. 28, 2010), reprinted in App. to Brief for Sen. DeMint et al. as Amici Curiae 7a; see id., at 3a, 9a. For example, Virginia, which uses civil contempt as “a last resort,” reports that in 2010 “deadbeats” paid approximately $13 million “either before a court hearing to avoid a contempt finding or after a court hearing to purge the contempt finding.” Id., at 13a–14a. Other States confirm that the mere threat of imprisonment is often quite effective because most contemners “will pay . . . rather than go to jail.” Id., at 4a; see also Underground Economy C–2 (“Many judges . . . report that the prospect of [detention] often causes obligors to discover previously undisclosed resources that they can use to make child support payments”).

This case illustrates the point. After the family court imposed Turner’s weekly support obligation in June 2003, he made no payments until the court held him in contempt three months later, whereupon he paid over $1,000 to avoid confinement. App. 17a–18a, 131a. Three more times, Turner refused to pay until the family court held him in contempt—then paid in short order. Id., at 23a– 25a, 31a–34a, 125a–126a, 129a–130a.

Although I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. Nor do I address the wisdom of the State’s decision to use certain methods of enforcement. Whether “deadbeat dads” should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support. See Elrod & Dale, Paradigm Shifts and Pendulum Swings in Child Custody, 42 Fam. L. Q. 381, 382 (2008) (observing the “federalization of many areas of family law” (internal quotation marks omitted)). This and other repercussions of the shift away from the nuclear family are ultimately the business of the policymaking branches. See, e.g., D. Popenoe, Family in Decline in America, reprinted in War Over the Family 3, 4 (2005) (discussing “four major social trends” that emerged in the 1960’s “to signal a widespread ‘flight’ ” from the “nuclear family”); Krause, Child Support Reassessed, 24 Fam. L. Q. 1, 16 (1990) (“Easy-come, easy-go marriage and casual cohabitation and procreation are on a collision course with the economic and social needs of children”); M. Boumil & J. Friedman, Deadbeat Dads 23– 24 (1996) (“Many [children of deadbeat dads] are born out of wedlock . . . . Others have lost a parent to divorce at such a young age that they have little conscious memory of it”).

* * *

I would affirm the judgment of the South Carolina Supreme Court because the Due Process Clause does not provide a right to appointed counsel in civil contempt hearings that may lead to incarceration. As that is the only issue properly before the Court, I respectfully dissent.

1 I agree with the Court that this case is not moot because the challenged action is likely to recur yet is so brief that it otherwise evades our review. Ante, at 5–7.

2 “Criminal contempt is a crime in the ordinary sense”; therefore, criminal contemners are entitled to “the protections that the Constitution requires of such criminal proceedings,” including the right to counsel. Mine Workers v. Bagwell, 512 U. S. 821, 826 (1994) (citing Cooke v. United States, 267 U. S. 517, 537 (1925); internal quotation marks omitted).

3 Indeed, the new question is not one that would even merit certiorari. See this Court’s Rule 10. Because the family court received a form detailing Turner’s finances and the judge could not hold Turner in contempt without concluding that he could pay, the due process question that the majority answers reduces to a factbound assessment of the family court’s performance. See ante, at 14–16; Reply Brief for Petitioner 14–15 (“[I]n advance of his hearing, Turner supplied to the family court just such a form”).

4 See, e.g., Deadbeat Parents Punishment Act of 1998, 112 Stat. 618; Child Support Recovery Act of 1992, 106 Stat. 3403; Child Support Enforcement Amendments of 1984, 98 Stat. 1305; Social Services Amendments of 1974, 88 Stat. 2337.

5 See Deadbeat Parents Punishment Act of 1998, 112 Stat. 618 (referring to parents who “willfully fai[l] to pay a support obligation” as “[d]eadbeat [p]arents”).

6 In this case, Turner switched between eight different jobs in three years, which made wage withholding difficult. App. 12a, 18a, 24a, 47a, 53a, 136a–139a. Most recently, Turner sold drugs in 2009 and 2010 but paid not a penny in child support during those years. Id., at 105a– 111a; App. to Brief for Respondents 16a, 21a–24a, 29a–32a, 37a–54a.

Print this transcript Transcript: 

ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in case 10-10, Turner v. Rogers.

Mr. Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

Due process requires the assistance of counsel before an alleged civil contemnor can be incarcerated.

That categorical rule flows from the imposition by a court in a formal adversary proceeding of what this Court has termed, quote, "the awesome prospected of incarceration".

Justice Antonin Scalia: It's -- it's a formal adversary proceeding in a very limited sense and not in the sense that caused us to require counsel to be provided in criminal proceedings where the other side is armed with the legal knowledge that the poor defendant does not have.

Many of these proceedings do not involve counsel on the other side, do they?

Mr. Waxman: Well, Justice Scalia, the answer is yes and no.

I don't think that you can call this nonadversarial because the -- because South Carolina as a matter of--

Justice Antonin Scalia: I'm talking about counsel.

Is it not true that many, perhaps most of these proceedings, do not have counsel on the other side?

It is the wife who is trying to get -- a payment of -- of the -- of the defaulted alimony and does not have counsel--

Mr. Waxman: --I think it is -- the contrary is true.

According to the government statistics, 70 percent of noncustodial parents either have no income or have income less than $10,000, and therefore in a State -- in every State that accepts TANF funds, which is every State, they are represented by the State agency, and South Carolina in this case has made a rule that in-State cases -- and that also includes nonwelfare cases where the -- a custodial parent has chosen to be represented by the State -- the State entirely carries its prosecutorial burden by filing a rule to show cause and an affidavit showing arrearages, and that places the burden, which South Carolina says is a heavy burden, on the defendant to prove inability to comply as a condition of maintaining his liberty.

Justice Samuel Alito: Well, if we agree with you, isn't this going to create an imbalance?

Now in this case Ms. Rogers was not represented by counsel at this proceeding, was she?

Mr. Waxman: Ms. Rogers -- in most of the proceedings, and it -- it does vary from one to the other.

In all -- let's put it this way, all of the proceedings the charges and the State's prima facie case of willful contempt was established by a State employee.

Justice Samuel Alito: Yes.

The State employee sends out the -- the will to show cause and proof that, evidence that the -- the noncustodial parent is in arrears on the child payments.

So let's see what would happen if counsel is then appointed in one of these cases, where both the custodial parent and the noncustodial parent are indigent and perhaps not very well educated.

Counsel is appointed for the noncustodial parent, and counsel comes in and says this is the income of my client, and he's hurt, he was hurt on the job, all his -- his income is Social Security disability benefits, and he doesn't have enough money to pay child support.

Now, the custodial -- the non -- the custodial parent who has no attorney says he's not really hurt, I see him, I see him walking around, he's going hunting, he's shooting baskets, he's driving around in a new car.

It may not be the -- the title may not be in his name, he's -- he's out on the street corner, he's buying drugs, he's drinking alcohol, but I don't have a lawyer and I can't prove any of this.

So you've created a great imbalance there, haven't you?

Mr. Waxman: Not at all, Justice Alito.

First of all, in all -- in the -- in the majority of cases the department of social services is in fact the real party in interest and the moving party, and in any private case, for a nominal fee the custodial mother can have the department of social services act in that role as Federal law requires the State to do.

Second of all--

Justice Antonin Scalia: --Why don't you argue for a rule that -- that the State must provide counsel for the defendant in these cases where it has provided counsel or there is paid counsel on the other side?

Wouldn't that be fair?

Mr. Waxman: --That would certainly be more than fair, and the number of instances -- let -- let's be clear about this.

The number of instances in which the State will be required to appoint counsel for the alleged civil contemnor will be in cases where -- I mean, there's no reason why the State of South Carolina when it issues the summons and the affidavit says fill out this form and let us know whether you have assets or have income; in all of those cases where they believe that this is a turnip, not a deadbeat dad, they will proceed with remedies other -- other than incarceration.

It's only when they want to proceed in the face of a form that shows indigence and inability to have counsel, that the State has to provide a lawyer before it -- before it puts this man in jail.

Chief Justice John G. Roberts: When you asked--

Justice Ruth Bader Ginsburg: Mr. Waxman, in your opening statement you said whenever, in civil contempt, a person is subject to incarceration he or she is entitled to counsel.

In your opening statement you didn't limit it to cases like the case we have before us; that is, where the defense is I'm unable to pay.

Therefore, I can't get out of jail.

Are you limiting -- are you limiting your argument to the case of a noncustodial parent or a former husband who says I just haven't got the wherewithal to pay?

Or are you making a broader claim that anytime someone is subject to incarceration they must have counsel?

Mr. Waxman: It is definitely the broader claim; that is, this -- this decision about counsel has to be determined ex ante, because the State -- and this is our limit -- I suppose our more limited request for a categorical rule.

Where you have a State that has placed the burden on the noncustodial parent--

Justice Anthony Kennedy: Well, my -- my question follows from what I think Justice Ginsburg must have in mind.

My understanding is that it's a commonplace if the witness declines to testify even though the witness has immunity, or the attorney or the witness declines to produce a document, the judge says you will remain in jail until you comply.

In most of the States I think he's allowed counsel; but does the broad statement that you -- or the broad argument that you responded, that you're making when you answered Justice Ginsburg's case, apply there, so we are in effect saying in all these cases you must have appointed counsel?

Mr. Waxman: --No, no, no.

Our submission is any case in which the State proposes to deprive somebody with an unqualified right to liberty of that liberty by actual incarceration, there is a right to counsel.

Now there is a right to appointed--

Justice Anthony Kennedy: You're committed to custody until you testify.

Mr. Waxman: --Well--

Justice Anthony Kennedy: "Mr. Bailiff, take him out. "

Mr. Waxman: --There -- the cases have recognized the distinction, Justice Kennedy, between direct contempt and indirect contempt; and direct contempt, which is a witness in the courtroom refuses to testify, the cases have -- both civil and criminal -- have not required the appointment of counsel or a jury trial or anything like that.

In -- in a case where the grand jury witness refuses to testify, the cases all to my knowledge do require the appointment of counsel, because there may be a defense, and someone is being deprived of their liberty.

Now, I think it's important, Justice Ginsburg you asked me if I have a more limited rule, and in this instance the limited rule is that certainly counsel requires -- certainly the due process clause requires the appointment of counsel where the State places the affirmative burden on the contemnor to demonstrate as a matter of law and fact that he was unable to comply, and thus that incarceration would not be unlawful punishment, but lawful coercion; and that is, I think, an important distinction.

Justice Sonia Sotomayor: Mr. Waxman, the Solicitor General suggests that the failure in this case or the failure to appoint counsel arises from a due process complaint that the -- that the -- that the Petitioner here didn't know that he had indigency as a defense, or what he needed to prove or to bring to court to prove that.

Why wouldn't the Solicitor General's solution of saying as long as a State tells a defendant that they have a burden of proof and some contours of what proof they need to supply or -- on that issue, that that would satisfy due process?

What can a lawyer do when someone comes in and says, I'm not earning any money, I can't earn it, blah, blah, blah, end of story?

Mr. Waxman: The reason--

Justice Sonia Sotomayor: What do you need?

Why do you need--

Mr. Waxman: --The reason it doesn't satisfy -- even if the -- even if the defendant is advised that there is an inability-to-comply defense.

And that a sentence imposed where there is an inability to comply is unlawful under Gompers and Bagwell, and for that matter under South Carolina law, is that the showing that the -- the burden that the defendant has to shoulder, the shoulder -- the showing that the defendant has to make is both legal and factual and neither one of them is straightforward.

It's legal, for example, because there are lots of legal questions built into the unable-to-comply defense, including what it means to be unable to comply.

Intentional underemployment, the allegation made in this court that he's using up all his income on drug use, the ability to--

Justice Sonia Sotomayor: --He admitted that.

Mr. Waxman: --Well, no, he admitted that--

Justice Sonia Sotomayor: At least up until the accident.

Mr. Waxman: --Yes.

Exactly.

But the point is that using -- intentional underemployment, the drug use, the ability to incarcerate somebody so that they can reduce their arrearage on a work release program, perhaps the requirement that he sell his $1,500 car, those are all legal questions as to whether the defendant -- they constitute an inability to comply.

Justice Sonia Sotomayor: And you don't think an individual is capable of saying, I can't -- I'm -- yes, I am or no I'm not using up my money on drugs; that's my preference?

Mr. Waxman: I mean, the -- the first of all--

Justice Sonia Sotomayor: Or I have a $1,500 car, but I need it to be able to do something else?

Mr. Waxman: --Justice Sotomayor, even leaving aside all of those undecided questions under South Carolina -- legal questions under South Carolina law, even as to the facts that you've addressed, the burden is not insignificant.

Recall that a mere assertion, I mean in this case this man filled out a form saying that -- certifying that he had no income and one asset, a car worth $1,500.

In order -- the -- the courts have said that assertions don't satisfy it.

He has to--

Justice Sonia Sotomayor: Where is that form in the record?

Mr. Waxman: --Hmm?

Justice Sonia Sotomayor: Where is the form in the record?

Mr. Waxman: The form is in the trial record; we did not include it in the -- in the joint appendix.

We can make it available to the Court.

It -- it is in the trial record, and we didn't understand at the time we were filing that the United States would be making an argument that the submission of a, quote, "simple form" would satisfy due process.

I -- I thought of lodging it--

Chief Justice John G. Roberts: --Counsel--

Mr. Waxman: --but I think the Court's lodging rules--

Chief Justice John G. Roberts: --Counsel !

Mr. Waxman: --Mr. Chief Justice, I'm sorry.

Chief Justice John G. Roberts: You have stressed that the burden in this case is on the defendant.

Would your position be different if the burden were on the complainant?

Mr. Waxman: I think the case would -- our case would not be as strong.

To be sure, in the criminal -- in the criminal contempt context, the burden, of course, is on the State, and to prove beyond a reasonable doubt, but there is an acknowledged right to counsel, and there was for decades before this Court considered criminal contempt to be a crime within the meaning of the Sixth Amendment.

So I think we would still -- even if the burden had shifted, the broader role we're asking for is, look, the -- here the State is sending a man to jail repeatedly on the premise of exacting compliance with court orders, and on the theory that he holds the keys to his own pocket because he can always choose to comply.

And our submission is that when the State uses that sanction on the basis of that theory, due process demands that it guarantee the assistance of counsel to assure that the district court is right and that the sentence imposed is lawfully coercive and not unconstitutionally punitive.

Justice Elena Kagan: Mr. Waxman--

Mr. Waxman: That's our--

Justice Elena Kagan: --suppose the Court thinks that -- suppose the Court looks at this record and thinks this is a broken system and a violation of due process, but requiring a counsel in every case may go too far, and there may, in fact, be alternate procedures that a State could adopt that would comply with due process.

And I know that this is not your submission, it's instead the solicitor general's submission, but if pressed on that point, what procedures do you think would be capable of giving a person in this situation a fair shake at this?

Mr. Waxman: --Certainly -- I mean, we think that given the way the adversary system works and given the legal nature of the determination that a judge makes depriving somebody of liberty, and given the significant burdens that are faced in carrying the burden to establish that, there are none.

Due process requires the application of what this Court in Lassiter called the general rule or the presumption that civil or criminal, when the State chooses to absolutely deprive somebody fully at liberty of his liberty, it must provide counsel.

I mean, I suppose the closest second would be what Justice Powell providing the fifth vote in Vitek provided, which is even in that case where the decision was being made by a mental health professional and the issue involved the transfer from somebody in State prison to a State mental unit, a much diminished liberty interest.

Even Justice Powell, providing the fifth vote, said, well, in light of the nature of the decision being made and the decision-making body, I wouldn't always require counsel.

I would think that a trained mental health professional--

Justice Antonin Scalia: Mr. Waxman, for those of us who think the Due Process Clause doesn't contain whatever we think it ought to contain, but contains what the people who ratified it thought it contained, what's the earliest case that you have which adopts the proposition that you're now espousing, that whenever a civil contempt citation is imposed upon an indigent person, that person is entitled to counsel as a matter of due process?

Mr. Waxman: --Justice Scalia, if I had such a case, it would have appeared quite prominently in my brief.

There is no such case, but let me make two points about history and what the Due Process Clause means, notwithstanding what some of us might like it to mean.

First of all, history -- the history is very, very complicated, and it doesn't dictate the answer.

The traditional distinction along the lines was not between civil or criminal contempt, but direct or indirect contempt, and as I know Your Honor knows because you've written it, traditionally at common law, I mean, counsel was provided for civil cases, and in misdemeanor cases, but not felony cases.

The criminal civil distinction in contempt arose in this Court around the turn of the 20th century, and it arose so that the courts could exercise more supervisory review over the imposition of criminal contempt by courts.

Now in Cooke and Oliver, this Court, as I said, long, long before it recognized that criminal contempt was a sixth -- a crime entitled to all Sixth Amendment protections, held that because of the nature of the deprivation of liberty, the appointment of counsel was required.

And our submission here is as this Court has recognized, the distinction between civil and criminal contempt is the question of whether you have coercive imprisonment or imprisonment as punishment.

And in almost every case, the sentence involves some aspect of both, and where the only thing, the only thing that keeps the coercive imprisonment from being unconstitutionally punitive absent a jury trial right and proof beyond a reasonable doubt and counsel, is the ability to comply with the court's order.

And that burden is put on the defendant, even though it is the State's burden to prove willfulness, due process -- fundamental fairness as due process.

Justice Antonin Scalia: Whenever there is an erroneous judgment in a civil contempt case, it becomes a criminal contempt case; is that -- is that what you're saying?

Mr. Waxman: This -- this Court has said in Bagwell and in Gompers that in the event that the sentence applied -- in Bagwell it was a fine, in Gompers it was imprisonment -- served only punitive purposes and could not be coercive because the defendant could not comply, that sentence was unlawful because it had not been imposed following a proceeding in which the government--

Justice Stephen G. Breyer: I'm still curious -- are you finished?

Mr. Waxman: --But, yeah -- just in -- I'm sorry, Justice Breyer, just to finish this sentence -- that is the sine qua non of the distinction, and unlike, for example, the immigration context and the other contexts that the government is relying on, this is a situation in which the consequence of an error, that is an erroneous outcome renders the detention an unlawful criminal penalty.

That is not true in any other context.

Justice Ruth Bader Ginsburg: Are you saying all the trappings of criminal procedure come with it?

This case is focused on a right to counsel, but what about a burden of proof, what about a jury trial?

Mr. Waxman: No, Justice Ginsburg, this Court has made -- we're talking about a determination ex ante, before the man is sent to jail, in this case for repeated long periods, should he be appointed counsel.

This Court has already said that in civil contempt proceedings there is no requirement of proof beyond a reasonable doubt and there is no requirement of proof of a jury trial, just as following Gault, this Court said there is no requirement of a jury trial in a juvenile commitment case.

Justice Antonin Scalia: My goodness, if -- if you're relying for that proposition only on the fact that we've already said it, why don't you also say we've never said what you want us to say now?

I mean, if that's the only argument, we've already said it.

If it was wrong, we should unsay it.

Mr. Waxman: It wasn't wrong, Justice Scalia, and as we've pointed out, the majority of States and all seven circuits that have spoken to this question have all held that there is, in fact, a right to appointed counsel before the State in an -- in an assertedly civil contempt proceeding can deprive a human being of his liberty.

Justice Antonin Scalia: But if all of the arguments you're making to us are correct, why shouldn't the other accompaniments of a full dress criminal trial apply?

Mr. Waxman: Because--

Justice Antonin Scalia: So he has counsel, but the burden's been put on him rather than on the State to prove, in fact, that he -- whether or not he is indigent?

Mr. Waxman: --Because the proceeding is civil.

It is not our contention that this is a criminal proceeding, and this Court in Maggio and in Hicks v. Feiock made clear that shifting the burden, so long as the -- so long as the imprisonment is meant to be coercive, shifting the burden is not unconstitutional and because--

Justice Anthony Kennedy: Why is it--

Mr. Waxman: --I'm sorry -- and because it is a civil proceeding--

Justice Antonin Scalia: It's an illogical distinction is what I'm saying.

Mr. Waxman: --Well--

Justice Antonin Scalia: Maybe Justice Alito can--

MR. WAXMAN -- I'm not sure, but--

--can ask his question.

Mr. Waxman: --Yes, Justice Alito?

Justice Samuel Alito: Why isn't something like what the solicitor general suggested adequate here?

The State provides a very clear form for the noncustodial parent to fill out, and then in court the judge goes through it step by step, are you working?

How much are you making?

Do you have any other money?

What expenses do you need for living?

And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.

But why isn't that adequate to deal with this situation rather than a categorical rule that you have to have counsel appointed in every case where there's an issue about ability to pay?

Mr. Waxman: It's -- that submission is inconsistent with how the adversary process works, and more importantly, Justice Alito, it misunderstands the nature of the burden.

Unlike in Gagnon v. Scarpelli, where the mine-run of cases only involved the parole revocation board to determine whether somebody had subsequently been convicted, here the mine-run of cases involves things that -- that an uncounseled, lay, often undereducated, often incarcerated defendant can't do.

For example, just the--

Justice Samuel Alito: You think the issue here is more complicated than the issue about whether somebody's probation should be revoked?

Mr. Waxman: --Well, what Gagnon v. Scarpelli said was in any -- in the mine-run of cases, all that is required with respect to somebody who has a highly reduced liberty interest in an informal proceeding is whether or not they have subsequently been convicted, yes or no.

And if it's any more than that binary factor, counsel probably is going to be required.

And our submission is the mine-run of these cases involve the marshaling of evidence and testimony that uncounseled, uneducated defendants are not likely to be able to do on legal questions.

Justice Ruth Bader Ginsburg: Mr. Waxman, you mentioned Lassiter, and you mentioned something that Lassiter said in passing, but what was at stake there was deprivation of parental status.

And the court said sometimes, in some cases, yes, but we're not going to make an across-the-board rule.

Now, that deprivation, some people think, is the worst possible, for a custodial parent to be told you're no longer a parent, you no longer have a child.

And yet the court said we're not going to provide counsel in every case, because in some cases the person can get a fair hearing without counsel.

Mr. Waxman: Right.

And what the court -- and recognizing that Lassiter is dicta, because it did consider that context, what it said is we have to -- we have to do the Matthews v. Eldridge balancing against a generalization, a preeminent generalization that exists in our case law, which is that there is a presumption that an indigent defendant has a right to appointed counsel only when he loses or may be deprived of his liberties.

Since that doesn't apply here, we have to do the Matthews v. Eldridge balancing against the presumption that cuts the other way.

Justice Anthony Kennedy: --My concern is -- and it's been brought up in some of the other questions that Justice Ginsburg asked earlier -- I just have the sense that there are thousands of these hearings around the country, and they're -- and they're very important in order to ensure child support, and that if we adopt your rule, in many cases where counsel are now waived or not present because of the -- the noncompliant parent is going to ask for counsel and that we're going to change the entire landscape of domestic relations proceeding, the Heisenberg principle.

Mr. Waxman: Justice Kennedy, the vast majority of jurisdictions require counsel and provide counsel, and there is no -- we would think if this were--

Justice Anthony Kennedy: In every case?

I mean, doesn't the defendant, or the -- or the noncompliant parent have to ask for the counsel?

Mr. Waxman: --I believe the rule is that if you have a right to counsel, the court is required to advise you that if you -- that you have one, and if you are unable to afford--

Justice Anthony Kennedy: My question is: Do you -- are there any data -- are there any data to show that in most of these cases, counsel does, in fact, appear?

Right?

Mr. Waxman: --I'm not aware--

Justice Anthony Kennedy: My assumption is not.

Mr. Waxman: --I'm not aware of data one way or the other.

We're only asking this Court to conform this Court's process jurisprudence with the vast majority of State and lower Federal courts that have found it--

Justice Ruth Bader Ginsburg: Does that go for alimony and palimony as well as child support?

Mr. Waxman: --It would go to any instance in which an alleged civil contemnor is facing incarceration.

Justice Ruth Bader Ginsburg: Yes, it did.

It would cover.

Mr. Waxman: Yes, and can demonstrate an inability to afford counsel in the same way that happens in misdemeanor cases.

May I reserve the balance of my time?

Chief Justice John G. Roberts: Thank you, Mr. Waxman.

Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING REVERSAL

Ms Kruger: Mr. Chief Justice, and may it please the Court:

In civil contempt proceedings to enforce orders for child support, due process requires a meaningful opportunity to be heard on the simple and straightforward but critical question that characterizes remedial sanctions in this area: Whether the nonpaying parent has the ability to pay.

The--

Justice Elena Kagan: Ms. Kruger, you say that the procedures here were inadequate, but that counsel in every case is not necessarily required.

You say alternate procedures can provide people in this situation with a fair shake.

But then when you look at the procedures that you actually say would comply with due process, they are remarkably anemic.

Basically, you say that a form has to be provided.

You don't require that there be anybody attached to the court, the kind of person that Justice Powell might have been talking about in Vitek, some kind of caseworker to assist the person with whatever questions he might have about the form or about how to fill it out.

You don't require that the court make any findings.

You don't require that the court even ask any questions.

Apparently, your idea of the procedure is just to give a person a form.

Am I reading you right?

Ms Kruger: --No, I don't think you are, Justice Kagan.

I think we would say that there are three fundamental requirements for due process in this area.

The first is both information regarding the nature of the inquiry that's going to be made at the hearing--

Justice Sonia Sotomayor: I'm sorry.

I'm not hearing you.

Could you speak more loudly?

Ms Kruger: --I'm sorry.

Certainly.

The first is -- as, Justice Sotomayor, you referenced earlier, the first is information in advance of the hearing that a critical question to be answered at the hearing is going to concern ability to pay, and a form or other type of procedure that would elicit information that's relevant to the alleged contemnor's financial condition.

The second would be a hearing at which the alleged contemnor has the opportunity to respond to any further inquiries that may be triggered by information that's already been provided.

This is, I think, a common feature of many systems outside of South Carolina which, by case law, have recognized that when a court has concerns that information on a financial affidavit might be misleading or inaccurate, they have a duty to inquire further and to require supporting documentation as necessary to confirm or dispel concerns about the accuracy of the information.

And then finally, I think we would require an express finding that the -- the alleged contemnor has the ability to satisfy the purge conditions such that the person can be said, not only theoretically, but also realistically, to have the keys to the jail cell in their pocket.

Justice Sonia Sotomayor: Counsel, as I -- and then I think one of the deficiencies in addressing your argument is that I don't really know what the State's procedures are.

Your -- your co-counsel, Mr. Waxman, has said there was actually a form.

I don't know what that form looks like.

The only thing that does seem missing that the State clearly provides is a requirement that the judge explain what the basis of his contempt finding is.

I'm looking at 60A and 61A, and this judge left it completely blank.

So is this a due process violation facially, or is this a due process violation as applied, meaning it's just not clear to me whether south -- the State's process, in fact, has all of the elements that you're speaking about or how I make that judgment and whether the -- we didn't grant cert on the question of whether, as applied, there was a failure or not.

I mean, one of the difficulties in this case is that there was really very -- no findings by the judge whatsoever.

Ms Kruger: I think that's right, and I think it's also right that South Carolina, at least insofar as the record reveals, doesn't require a finding that the alleged contemnor has the ability to comply with a purge condition, as opposed to requiring a finding of willful violation of the court's order.

Justice Sonia Sotomayor: Well, the -- the form, the order for contempt of court itself, 61A, does require the judge to fill out an answer as to whether he thinks the defendant is gainfully employed or has the ability to make the payments.

So it was just absent here.

Ms Kruger: The -- the question on the form relates to a past condition, as opposed to present ability to comply with a purge condition.

So the two inquiries are distinct.

Justice Antonin Scalia: Why -- why isn't the requirement that the judge satisfy himself that there's a willful failure to comply with the order?

Why doesn't that amount to saying the judge has to satisfy himself that this individual cannot pay, or can pay?

Ms Kruger: Justice--

Justice Antonin Scalia: It's not willful if he can pay.

If he -- if he can't pay.

Ms Kruger: --If he can't pay--

Justice Antonin Scalia: You know what I mean.

Ms Kruger: --I do know what you mean.

I understand you, Justice Scalia.

I think there's two separate questions, both of which concern ability to pay, but one is retrospective and the other is prospective.

The question whether the alleged contemnor has willfully violated a child support order is a retrospective question.

During the -- the alleged contemnor missed child support payments because he wasn't gainfully employed and didn't have the ability to comply.

Then the question for purposes of determining an appropriate sanction is does this person have the present ability to comply, such that sending that person to jail might reasonably be expected to induce them to -- to--

Justice Antonin Scalia: I see.

Ms Kruger: --carry out their financial obligations.

Chief Justice John G. Roberts: Counsel, just to be clear, your answer to the question presented is no, right?

It was not error for the South Carolina court to say there's no constitutional right in this type of a proceeding to appointed counsel?

Ms Kruger: That's correct, Mr. Chief Justice.

We think that there is no categorical right to appointed counsel in all civil contempt proceedings or--

Justice Ruth Bader Ginsburg: Is there a State -- we've been told that in many States appointment of counsel for an indigent, noncustodial parent who has -- who has child custody -- that counsel is automatic.

You have described something less than counsel.

Is there any model, any State where there is such a procedure so one might find out how it's working?

Ms Kruger: --I don't think that there is any one place you can look in order to see what -- features States are employing.

We know anecdotally from talking to individuals who are responsible for running programs in individual States that they do ordinarily, even in States that don't categorically require the appointments of counsel, satisfy each of the three procedural protections that I outlined earlier in response to Justice Kagan.

So, for example, in New Mexico, which hasn't recognized a categorical right to appointed counsel, there is a solicitation of financial information in advance of the hearing.

That information is reviewed by a caseworker, who will make the decision whether or not to refer the case to civil contempt proceedings.

There is a hearing at which further information is explored or elicited, and ultimately there's a determination made whether the alleged contemnor has the ability to comply.

Justice Ruth Bader Ginsburg: What about, an aid who is not counsel?

And the family court has a lot of auxiliary people like child advocates who are there to assist people who need some kind of representation, but not necessarily a lawyer.

Is that any part of your -- of what you would propose?

Ms Kruger: I think it would certainly be open to the Court to consider whether or not having the assistance of a layperson who may not necessarily be a lawyer would be a requirement of due process, but I think given the nature of the inquiry which goes to financial condition, it's the kind of information that individuals provide on a regular basis without the assistance of either competent lay people or lawyers with legal expertise.

It seems unnecessary to satisfy the commands of fundamental fairness in order to create that requirement across the board; in much the same way I think it's unnecessary to appoint counsel in every case as opposed to taking the modest and relatively inexpensive steps that we've outlined in order to ensure a meaningful opportunity to be heard.

Justice Ruth Bader Ginsburg: Is the form you have in mind something different than the form, the IFP form that would be filled out say, by a 2255 petitioner?

Ms Kruger: I don't think it would, Justice Ginsburg, but precisely what the form would contain would have to be tailored to the law in the relevant jurisdiction.

So where the determination is made on the basis of assets and income, it would be appropriate for the form to elicit that information.

Where in other jurisdictions the law is clear that the other information may be relevant to that inquiry, it would be appropriate for the form to elicit that information as well.

But I think in substance the form would look very much like the form that this Court sees on a regular basis attached to its petitions for writs of certiorari, and would also look very much like forms that are commonly applied in jurisdictions across the country in child support programs in order to establish the amounts of child support obligation in the first place.

South Carolina employs such a form for that purpose, and I think it would be a relatively trivial matter for South Carolina to use a similar form for the purpose of enforcement.

Justice Elena Kagan: Ms. Kruger, could you say a bit more about the question that Mr. Waxman and Justice Scalia were talking about: how often these proceedings have the State on one side, how often they have the custodial parent on one side, whether there is counsel for the opposite side in many of these cases?

Ms Kruger: There is in some, but not all, Justice Kagan.

It's true that the State is often, though not always represented in these proceedings, not always by lawyers as opposed to caseworkers or other nonlawyer personnel who work for the departments of social services.

Chief Justice John G. Roberts: Thank you, Ms. Kruger.

Mr. Bibas.

ORAL ARGUMENT OF STEPHANOS BIBAS ON BEHALF OF THE RESPONDENTS

Mr. Bibas: Mr. Chief Justice, and may it please the Court:

Mrs. Rogers and custodial mothers and parents like her need simple, fast, civil procedures to probe fathers' chronic failures to support their children.

Today I'll make two points.

First, this case is moot.

Second, a per se right to appointed counsel is not essential to prevent fundamental unfairness.

First, this case is moot.

On remand there is no possible redress for Petitioner.

He seeks an advisory opinion but fails to bear his burden of proving that his case will evade review because he could get a stay.

Litigants must preserve questions by seeking stays or -- supersedence -- where available.

Only where there is no procedure of which Petitioner could have availed himself to stay confinement, because a State statute had a blanket denial of bail pending appeal, did this court in Sibron find that a dispute could not be stayed and so would evade review.

Justice Ruth Bader Ginsburg: The South Carolina Supreme Court, as I understand, heard this case after he was released, so they didn't consider it moot.

Mr. Bibas: Your Honor, the issue was not briefed or argued or raised.

My client had no lawyer, filed no brief, made no argument, so we don't know what they considered or held.

They made no reference to it.

Chief Justice John G. Roberts: Suppose--

Justice Ruth Bader Ginsburg: But it was a fact, was it not, that he was already released?

Mr. Bibas: Yes, that's correct, Your Honor.

Chief Justice John G. Roberts: --I suppose -- we have held, haven't we, that States can have different concepts of mootness than the Federal one?

Mr. Bibas: Yes, Your Honor, that's right.

And South Carolina deals with this issue -- obviously in this Court the question is an Article III question.

And because the evading review is an exception to Article III's normal requirements that Federal courts have jurisdiction only over live cases or controversies, it should be construed narrowly, only where essential to preserve review.

Here Petitioner didn't ask for a stay; if he had asked--

Justice Sonia Sotomayor: Counsel, do we have jurisdiction over any matter that isn't rendered in a final judgment in State court?

Mr. Bibas: --No, Your Honor.

Justice Sonia Sotomayor: So if we don't have jurisdiction over anything but a final judgment, how could we ever grant a stay if the State refused to?

Mr. Bibas: I -- your--

Justice Sonia Sotomayor: If a State refused to grant a stay.

Mr. Bibas: --I--

Justice Sonia Sotomayor: And why would South -- why would the State here have granted a stay, if it believes there's no Sixth Amendment right whatsoever to counsel?

How could that litigant ever evade mootness?

Mr. Bibas: --Your Honor is correct that the relief would be coming from the South Carolina State courts, and South Carolina ruled 241(c) appears to be tailor-made for this situation.

And it instructs courts to consider whether a stay is necessary to preserve jurisdiction of the appeal or to prevent the contested issue from becoming moot.

Our position is--

Justice Sonia Sotomayor: Can you point to any case involving support payments in which the South Carolina court has ever granted a stay?

Mr. Bibas: --The closest I can point to is Berry v. Januario, a South Carolina State court case involving parental termination -- termination of parental rights from a family court, where the South Carolina Supreme Court stayed the matter; and so if Petitioner had asked, there's a substantial likelihood the court would have granted a stay through the South Carolina Supreme Court; at this point under rule 23 this Court could affirm--

Justice Antonin Scalia: Did the Petitioner know about rule 23?

Where had he learned about that?

He didn't have counsel, right?

Mr. Bibas: --He had counsel as of no later than three weeks after the trial court hearing.

He had counsel for 11 months of the sentence.

Justice Antonin Scalia: Okay, before -- before it got up to the--

Mr. Bibas: That's right, 11 months before the case became moot.

On the merits, a civil contempt case does not, as my adversary suggests, quote, "sound in criminal contempt" and require counsel, quote,

"precisely to ensure that the proceeding remains civil. "

Justice Anthony Kennedy: Is it correct for me to think of both the Petitioner's argument and your response as a Mathews v. Eldridge problem?

Mr. Bibas: No.

Your Honor, I believe the main argument here, and the only one the Petitioner argued in the courts below, is an absolute categorical right that any loss of liberty equals an absolute right to counsel.

Justice Anthony Kennedy: Well, it -- it does seem that absolute right and Mathews v. Eldridge is not quite a -- a good fit, but it seems to me that most of Mr. Waxman's arguments can be subsumed within the Mathews v. Eldridge framework.

Mr. Bibas: Yes, that is his fallback argument, though it wasn't developed in the courts below, but I think it's important to note that because his argument approaches and, in fact, leads with an absolute claim to note the breadth of the rule.

So picking up on your question to Mr. Waxman, Justice Kennedy, it's important to note not only that Petitioner's rule would reach other civil contempt beyond child support, but because any loss of liberty is the overwhelming factor in his calculus, it would apply to tens of thousands of immigration and extradition cases.

Petitioner's reply brief does not deny this, saying only that they might or might not be distinguishable.

And immigration, we would submit, is an a fortiori from this case.

The legal issues there are more complex, the deprivation is more severe, the confinement not purgeable.

Any ruling--

Justice Anthony Kennedy: Just -- just -- just assume that we could somehow block out that category.

If you could focus just on the domestic relations support proceedings, would there be a basic change in the way those proceedings are being conducted in other States, if we rule in favor of Petitioner and say there's an absolute right?

Mr. Bibas: --Yes, Justice Kennedy, there would be a massive change.

Trial judges need to know ahead of time which sets of procedures to apply, civil or criminal.

Justice Ruth Bader Ginsburg: Isn't it -- isn't it true that most States in child support cases, when the defendant says I have no money, will appoint counsel?

Mr. Bibas: That is not true of most States, Justice Ginsburg.

My understanding is fifteen States recognize it as a constitutional matter, eleven additional States by statute rule or practice appear to recognize a statewide right to counsel, so there's a bear majority.

At least 17 States do not have a statewide right and the remaining seven are unclear.

So, we're talking about reformulating rules in a huge number of states that probably affect hundreds of thousands of cases.

I would ask the Court to consider the Office of Child Support Enforcement study that's in the appendix to the Senator's brief, it's the best empirical evidence we have of how these proceedings work.

And the evidence is relevant both to the need for these procedures in the balancing test Justice Kennedy refers to, but also the apparent relatively low reason to believe there's a large error rate here.

According to that study, many parents -- non-supporting parents are cited for contempt and purged of their contempt, many fewer are, in fact, confined.

It is -- appears to be the threat that coerces enforcement and deters violation.

Many parents do not pay up until after the contempt hearing and confinement is imminent.

So States would have to appoint counsel in a large number of cases, most of which wind up purging, so the first point to note is that--

Justice Ruth Bader Ginsburg: I thought the point was it's only if the defendant -- the complaint is only if the defendant does not have keys in his pocket because he has no money.

So in cases where typical recalcitrant spouse won't pay until he's threatened with jail, that wouldn't come in this category.

I thought Mr. Waxman was speaking about people who do not have the keys in their pockets because they simply cannot -- they do not have the wherewithal to pay.

Mr. Bibas: --Yes, Your Honor, but very, very many non-supporting parents protest the same.

And so, it is true that the slice of those brought to civil contempt hearings is only a small fraction of the overall caseload.

Justice Anthony Kennedy: Yes, and I -- and I suppose you could say that in -- in advance that the judge and the appointing authority simply wouldn't know.

Mr. Bibas: Exactly, Justice Kennedy.

Trial judges need to be able to protect themselves.

They need to be able to know when they go into a hearing whether to apply civil or criminal procedures, and that's this Court's lesson in Hicks versus Feiock.

Hicks said a judge needs to know ex ante based on a couple of simple rules.

Quote, if the relief imposed here is, in fact, a determinant sentence with a purge clause, then it is civil, then civil procedures apply.

And if the remedy runs to the injured party, then it is civil.

But to -- even cases that have overturned erroneous civil contempt, do not, as my brother Mr. Waxman suggests, become punitive and criminal.

Maggio and Shillitani recognize that they remain civil.

Shillitani declined to find a right to indictment or jury trial because it was a civil case.

To go back to the--

Justice Sonia Sotomayor: Counsel, I -- I took the solicitor general's position to be, they may accuse me of not being accurate in what I took their position to be, which is the rule would be simple.

You, a State, are free to run these procedures as you choose, but not to provide counsel, you have to meet some minimum Mathews v. Eldridge requirements, and so the rule is simple.

The State can do what it wants, but it has to provide minimum due process, and they've previously set forth the three, all right?

So really the answer is, no, you're not automatically entitled to a lawyer if you're providing minimum due process.

If you're not, then you have to provide a lawyer.

Mr. Bibas: --Yes, Your Honor.

Justice Sonia Sotomayor: All right.

What's wrong with that rule?

That, I think, is what the solicitor general is suggesting.

So first, what's wrong with the rule?

And, then, second, in a case in which I did not see and haven't yet a form that really talks about or tells the contemptor about his defense and what he needs to prove, yes, he did get a hearing but not a hearing that explored his statement that he'd been looking for work and couldn't find it, and a form, a judgment that doesn't address his current ability to pay.

How does the South Carolina system comply with those minimums of due process?

Mr. Bibas: Yes, Your Honor.

First I'll talk about the solicitor general's suggestions that you raise and then talk about the specific procedures here.

We think the solicitor general's suggestions are interesting, they're worth exploring, they were raised for the very first time at the merits stage here, so there's been no development.

We don't know what other States are doing, the range of options out there, the nonconstitutional measures which in the criminal context for guilty pleas were developed through rulemaking, Rule 11, lots of testimony and inquiry.

That's appropriate for development when presented and allowing those other bodies the first crack at them.

Justice Antonin Scalia: --Mr. Bibas, I have a question about -- about the position of the government in this case.

The government agrees with you that we don't need counsel, but says that we ought to reverse the judgment anyway, because there were -- because the other aspects of due process which the government asserts would make it unnecessary to provide counsel, did not exist in this case.

Did you think under our ordinary rules we -- we can do that?

Mr. Bibas: No, Your Honor, that's beyond the question presented.

Justice Antonin Scalia: Question presented was just whether counsel was necessary, right?

Mr. Bibas: That's correct.

Justice Antonin Scalia: And I suppose it's fully within the power of the government to say why, you know, in general counsel is not necessary because these other procedures are good enough.

But then to come forward and say moreover, those procedures were not applied in this case and therefore you should reverse, that's -- that's a new point, it seems to me, isn't it?

Mr. Bibas: Yes, Your Honor, and as Justice Sotomayor pointed out, that's not what this Court granted certiorari on.

And this is a case--

Justice Ruth Bader Ginsburg: What about you -- you stressed that this falls on the civil side, so why shouldn't we take Rule 54(d) as our model say that instructs the court that you give parties the relief to which they are entitled, even if they haven't asked for that relief, even if they've asked for something that they can't get?

Mr. Bibas: --Justice Ginsburg, I don't believe this is a question about relief.

I believe this is a question about what constitutional right is implicated.

This case arises from a State court.

The failure to raise the issue below is jurisdictional and is not -- that issue is not--

Justice Sonia Sotomayor: I don't know that that answers my question, because the way I phrased the question was very specific.

South Carolina, there's no constitutional right to counsel in every proceeding, but the question presented was whether South Carolina erred that an indigent defendant has no constitutional right to appoint counsel in any civil contempt proceeding.

And if the answer to that is, if the civil contempt proceeding does not comply with minimum due process requirements, counsel is required.

Mr. Bibas: --Your Honor, I respectfully--

Justice Sonia Sotomayor: Then isn't that an answer to the question presented?

Mr. Bibas: --I don't read the question presented that way, Your Honor.

Justice Sonia Sotomayor: We can argue about that later.

Mr. Bibas: Okay.

Fine.

Justice Sonia Sotomayor: Okay.

The point--

Justice Antonin Scalia: I would think that the rule would be that if -- if South Carolina has not complied with minimum due process procedures, minimum due process procedures are required, not counsel is required.

Mr. Bibas: Yes, Justice Scalia.

In the case presenting that issue, that's the appropriate remedy.

Justice Stephen G. Breyer: Go back to the -- what happen.

I think what the government says should happen, you should give them a form and the form should say do you have money to pay or not.

So what did happen, did the judge ever ask him?

Mr. Bibas: Here's what happened, Justice Breyer, the rule to show cause at joint appendix 50 A said in all capital letters, must bring proof of employment.

This was Petitioner's sixth hearing, he was familiar with the issues before.

At petition appendix 17 A--

Justice Stephen G. Breyer: Did he bring some proof of employment?

Mr. Bibas: --He did not.

Justice Stephen G. Breyer: All right.

So then why would you put him in jail?

He has no job.

Mr. Bibas: All right.

He had -- he explained that he, in fact -- tried to explain why he didn't have the money, that he had been -- both his drugs and two months of disability.

The judge, on the next page, petition appendix 18A, he heard the testimony, he saw his demeanor, he didn't believe him and found him in willful contempt.

And finally--

Justice Stephen G. Breyer: You mean he didn't believe him about what?

That he had no money?

Mr. Bibas: --That he did not have the money.

Justice Stephen G. Breyer: Okay.

So he -- he thought he did have the money?

Mr. Bibas: That's our reading of petition appendix 18A.

Justice Elena Kagan: Well, we couldn't really tell, could we, Mr. Bibas?

Because he completely ignored the question.

The entire transcript is less than two pages long.

Mr. Turner talked about how he had no money and he was disabled.

The court completely ignored him.

The court also ignored the questions on the form for the order of contempt about whether he had any money.

The court ignored that as well.

Mr. Bibas: Your Honor, none of those -- you are correct; none of those is filled out.

But what I wanted to explain is that due process looks at the totality of the State procedures, and the State has three mechanisms in place by which Petitioner, having counsel, could have challenged this.

He could have challenged both the factual and legal findings on appeal.

Family courts repeatedly overturn such--

Justice Stephen G. Breyer: I think actually trying--

Justice Antonin Scalia: I don't understand all of this discussion.

The question presented is not what due process procedures are required in these cases.

That is not the question presented.

Justice Stephen G. Breyer: --Just out of curiosity--

Justice Antonin Scalia: It is simply whether counsel is necessary.

Isn't that the only matter that we should be discussing?

Mr. Bibas: --Yes, Your Honor.

And--

Justice Stephen G. Breyer: --Fine, but I would like to ask a different question.

I'm trying to find out what happened here that was different from what the government suggests.

The government suggests provide a piece of paper and ask certain questions.

What I would like to know is: What's different in this proceeding from what the government suggests?

That would have -- perhaps no one else, but could have an effect on the way I decide the case.

Mr. Bibas: --Yes, Your Honor.

There was no such form provided, and there was not a form--

Justice Stephen G. Breyer: I understand there was no -- look.

If he asked the questions orally, I might be tempted to say it doesn't matter.

Mr. Bibas: --Yes.

Justice Stephen G. Breyer: So I'm trying to say: What really differed from what the government wants?

Mr. Bibas: Whether in a form or orally, a judge could ask such questions, as Justice Sotomayor pointed out.

There's a form in the appendix.

Whether -- what happened here or not is not the question.

The record is insufficient because Petitioner didn't develop it.

Justice Antonin Scalia: The government is not a party here, is it?

Mr. Bibas: No, Your Honor.

Justice Antonin Scalia: It's just an amicus.

So this expansion of the -- of the question presented from whether counsel was necessary to what are the due process procedures required is all at the suggestion of an amicus; is that right?

Mr. Bibas: Yes, Your Honor.

And so to focus on--

Justice Stephen G. Breyer: And skip that one.

What I'm trying to figure out -- and I'm sorry, I may be the only one trying to -- I'm trying to figure out is: What, in general, is the fairness of such situations in where the woman is normally the one with the child, the man is normally the one who doesn't pay?

Is it true, for example, that in most such situations across the country, the woman has a lawyer but the man doesn't?

Is that true or isn't it true?

There must be some organization that's studied that.

Mr. Bibas: --Yes, Your Honor.

That's -- we don't have good nationwide statistics.

What I can say is our understanding is that, first of all, Petitioner is incorrect in saying that the government has a lawyer here who is prosecuting.

He is conflating the clerk of the court issuing a ministerial rule to show cause with the presence of a law-trained prosecutor.

That is not the case in South Carolina.

That is not the case in very many cases.

Justice Stephen G. Breyer: Okay.

So the answer to what I think of, in my own mind only, as very relevant, whether the woman has a lawyer but the man doesn't, is: I don't know?

Mr. Bibas: It -- it is not across the board.

Justice Stephen G. Breyer: And that is the answer?

We don't have good information on that?

Mr. Bibas: We don't have good statistics as to how often.

Justice Stephen G. Breyer: Okay.

Fine.

Yes.

Chief Justice John G. Roberts: Do you know why we're not hearing from the State of South Carolina?

Mr. Bibas: Because the state was not a party--

Chief Justice John G. Roberts: No, no.

I understand that they were involved below.

They decided not to become a party before the State Supreme Court; is that right?

Mr. Bibas: --Yes, Your Honor.

Chief Justice John G. Roberts: Why aren't they defending their procedures?

Mr. Bibas: Well--

Chief Justice John G. Roberts: It may be an unfair question, since you don't represent the State.

Mr. Bibas: --Right.

I don't know.

All I can say is, Mrs. Rogers went -- anticipating that she would receive child support, Mrs. Rogers went off welfare in 2003.

After that point, the State ceased to have a direct financial interest, and the State has written a couple of letters in the Joint Appendix saying that because we are not a party to the suit, our financial interest is not directly implicated.

Chief Justice John G. Roberts: I think it would be a great financial interest if they have to provide counsel in these thousands and thousands of cases.

Mr. Bibas: That is a -- that is a broader systemic interest, and the State did, in fact, join an amicus brief to that effect in this case.

Justice Antonin Scalia: Could I ask a question about your mootness point?

Mr. Bibas: Yes.

Justice Antonin Scalia: You say it's not capable of repetition, and yet evading review, because should this happen again, he could get a stay, as he could have gotten in this case.

Do you have any case of ours which -- which uses that reasoning and says the fact that in a future case you may be able to get a stay suffices to establish that this is not capable of repetition yet evading review?

It's -- it's a new argument to me.

Is there any case of ours that applies it?

Mr. Bibas: The closest is this Court's decision in St. Pierre.

A number of lower courts that we cite have also followed some.

Chief Justice John G. Roberts: But it can't possibly be true, because we have cases applying the rule that this is capable of repetition, yet evading review.

If the rule were you have to get a stay, we wouldn't have any of those cases.

Mr. Bibas: They -- no, Your Honor.

In abortion cases, election cases, stays are practically impossible.

This is a different category of case, where stays are available, and those cases also seek prospective relief.

If I might go back to the financial interest you pointed out earlier, the reason the State would care here -- it's not that there's a State fisc interest that's substantial.

But the reason that matters to my clients is because the huge fiscal burden here could deter many states from this enforcement.

In fact, it has.

In New Jersey, after the State Supreme Court recognized in Pasqua a right to appointed counsel, New Jersey stopped using civil contempt enforcement.

When a State has to appoint counsel and stops doing so, it removes deterrence in a massive number of cases.

Justice Ruth Bader Ginsburg: Do we have any -- any computation about what it would be, what the counsel fee would be as opposed to keeping someone in prison for a year?

Mr. Bibas: We don't have those numbers, but I also believe that's not the correct inquiry, Your Honor, because it's not just the few people who are confined.

As I was saying earlier, if the percentage of those going to these hearings were actually confined is in the single digit percentages, as some of the numbers in the State's appendix suggest, then you're getting a huge leveraging effect of many people being coerced into paying before going into confinement or immediately after going into confinement, so the State can permissibly weigh those costs and benefits.

That's for the State legislature.

To go back to Justice Breyer's question earlier about what due process might require, I think it's important to focus on that these procedures are straightforward, informal procedures, navigable by laymen.

The most natural thing in the world when being accused of not paying is to say, but I can't pay, and to follow it up with an explanation.

I applied for this job; I'm out of work; I got sick.

Justice Stephen G. Breyer: But there are things that -- did anybody look at housing courts?

I mean, housing courts, I would think it's fairly common.

Someone owes somebody $25, or whatever it is, the judge says pay it into court, and what happens if they don't pay it into court?

Mr. Bibas: We haven't looked at that, Your Honor, and I'm sure the same arises in administrative appeals and small claims court, any number of places.

Here it's a simple intuitive issue, and South Carolina, like other states, uses relaxed, informal rules of evidence in procedure.

There are effectively no rules of hearsay or authentication.

Justice Samuel Alito: There are things the judge could have asked, though, and put on the record, and it might have cleared this up.

He could have -- the Petitioner here said he wasn't working and he couldn't work because he had been hurt, so the judge could have asked for medical records to substantiate that.

And then the Petitioner admitted that until recently, apparently, he had been taking meth.

He had been snorting coke.

The judge could have said, all right, you had the money then to buy those drugs; now, where did you get that and why do you no longer have that source of money?

He could have gone through a few simple steps, couldn't he, to make this -- to eliminate the problems?

Mr. Bibas: Yes, Your Honor, and whether that's salutary or ought to be considered in a future case, it's not the question here.

That could be worth exploring.

It is much lower-cost than appointing counsel across the board.

It's important to note--

Justice Anthony Kennedy: It's a little difficult to write the opinion if you are to prevail.

See, there's no absolute right.

But there might be in some other case, depending.

We don't give much help to the system that way, because it might be that ultimately we would find that the balancing test is more complex than simply appointing the counsel.

Mr. Bibas: --I don't believe this Court has to do that, Your Honor.

In -- in cases such as Gagnon and Lassiter, this Court laid out factors, said there's no categorical right to counsel, and the lower courts -- our examination of the post-Gagnon cases suggests most of them have said well, this is a pretty routine case, 85, 90 percent of the time--

Justice Anthony Kennedy: Well, then you do think we should lay out the factors, and if so what are the factors?

Mr. Bibas: --I -- I don't believe that it's necessary because we can't conceive of a legal issue here so complex that categorically a lawyer is necessary.

Justice Antonin Scalia: Counsel, I don't understand how we could say that if you do not meet minimum due process procedures, you must meet more than minimum due process procedures.

I mean, once we say that it's enough if you do A, B, and C, but this State has not done A, B, and C, how can we say therefore you must appoint counsel?

All we can say is you must do A, B, and C.

I don't know of any instance where we impose more than the due process minimum because you have failed to comply with the minimum.

Mr. Bibas: Yes, Your Honor.

Perhaps to go back to Justice Kennedy's point, if -- if the Court were concerned about more specific guidance, it could point to at least in situations that involve relaxed informal rules of procedure, where no rules of hearsay authentication, no jury trials, informal discovery, judges handle questioning, no State prosecutor, at least there might be no right to counsel.

Justice Anthony Kennedy: Well, I -- I just don't know that all those things are properly before us.

Mr. Bibas: Well, then, the appropriate thing is to answer the question that was raised by Petitioner in this case and not to go -- no need to go beyond that I would suggest.

Finally, let me point out that the closest analogue in the legal system to the question here about inability to pay child support is inability to afford counsel.

Our criminal justice legal system has extensive experience with that under the CJA, the Criminal Justice Act.

In the Federal system and in most States, the burden is on the defendant to show his inability to pay counsel.

He doesn't--

Justice Elena Kagan: Practically when those forms are used, the person fills out a form, and mostly they're just accepted, aren't they?

Mr. Bibas: --Your Honor, I don't believe they're rubber stamped.

The statistics that I have seen show denial rates of 10 to 20 percent, in some counties as high as 35 percent.

So there is a meaningful inquiry and meaningful denials, and all of those cases would violate due process on Petitioner's logic.

That cannot be the tidal wave to hit the criminal justice system.

That is not an appropriate extension of due process because the issues here and there are simpler, far simpler than in Lassiter, a formal trial-type adversarial procedure where nevertheless no categorical right to counsel was required.

It's important to go back, if one looks at the roots of the right to counsel in Powell and Gideon and Zerpst, Powell talked about the need for the guiding hand of counsel who are skilled in the science of law in order to deal with technical defects in the charging instrument, to deal with incompetent irrelevant or inadmissible evidence.

In proceedings such as this, where there are no formal rules of pleading or evidence, there is not a need -- certainly not a need for a categorical right to counsel.

If there are no further questions, may I conclude?

Litigants can themselves argue the commonsense issue of ability to pay, just as they can address their ability to afford counsel without first having counsel, and the cost of appointing counsel across the board would deter States from enforcing custodial parents' and their children's rights, as it has in New Jersey.

Thus this Court should dismiss for want of jurisdiction or else affirm.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Waxman, you have three minutes remaining.

REBUTTAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE PETITIONER

Mr. Waxman: I have three points.

Thank you, Mr. Chief Justice.

First of all, I mean this -- the crux of this dispute comes down to whether this is some -- akin to some sort of simple form that can be filled out that any layperson, no matter how uneducated, can deal with.

Second, the question is how much of a burden is this going to be on the States?

And, third, the question of whether or not what counsel suggests as the Utah model or what he denigrates as the New Jersey model would be a way to square this circle.

First of all, counsel says he can't conceive of a legal issue that can arise in this case.

Let's just look at this case as an example.

There was allegations of an admission of drug use.

Does or does that not constitute an inability to pay?

That is a legal question.

It is not a factual question.

Inability to comply is a legal defense, not a factual excuse.

The allegation was he's not employed, but maybe he's not looking for work or he's underemployed.

Is that inability to comply for purposes of a coercive contempt sanction?

That is a legal question.

Our suggestion is he could be incarcerated so that he could be placed on work release in a county jail program and reduce his arrearage.

Is that or is that not a permissible application of a coercive sanction of incarceration?

The cases that we've seen have said no, but it is an open legal question.

Even as to the marshaling of evidence, it is his burden not to just say, oh, I can't pay.

He submitted a form that he filed for his disability payments that said I have no income and I have a car that's worth $1,500.

Did he have to pay that car -- sell the car to pay or not?

That is a legal question.

In terms of burden, the State is paying -- there are approximately 15 percent of the State's jail population in any given year that are noncustodial parents that are serving terms, in this case two 6-month terms and a year term, at the cost, according to the statistics, at the cost of between 13 and 17 thousand dollars a year.

South Carolina, because it refuses to comply with the requirements of the Federal program, has already paid $72 million to the government in fines and owes another 10; and if you want to really reduce the cost, Justice Kennedy, and make this manageable, take the system that they are applauding in Utah or denigrating in New Jersey.

When the court sends out its order to show cause, it says please fill out this form showing whether you have income, whether you have assets, and whether you are unable to hire counsel.

If the--

Justice Samuel Alito: We don't have the Social Security disability form, but if the judge credited that and accepted that your client is -- was unable to work and had only the assets listed on that form, would he not then automatically be -- have shown that he had an inability to pay?

Mr. Waxman: --I think the answer is yes, but we don't know whether the judge even looked at the form, and we know from South Carolina law that a mere assertion is not the marshaling of evidentiary support that's required to carry the burden.

Justice Samuel Alito: Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Stephen G. Breyer: South Carolina's family court sometimes enforces its child support orders by holding in civil contempt, and potentially imprisoning for up to one year, those whom the Court has ordered to pay child support, and who can but do not do so.

Applying that law, the South Carolina Court sent petitioner Michael Turner to prison for up to a year, or until he paid the child support he owed, whichever came first.

Turner, who says he is indigent, had no lawyer at a civil contempt hearing.

And he's asked us to decide whether the Fourteenth Amendment's Due Process Clause requires the State to provide with counsel at a civil contempt hearing an indigent person potentially faced with imprisonment.

Now, this is a civil case, and traditionally, a person imprisoned for civil contempt, for violating a court order can be released by complying with the order.

Its slogan is, he "carries the keys of his prison in his own pocket."

Still, an indigent may find it difficult to comply with an order to pay child support and for that reason, might have a defense to the contempt charge.

But is he indigent, so that he cannot pay?

Turner says he should have a lawyer to help him answer that question.

In reaching our conclusion, we balanced several relevant interests.

Turner has an obviously strong interest on his side, namely that accuracy in respect to his financial status is especially important, because he is threatened with prison.

But three other factors, which we explain in detail in our opinion, lead us to conclude that nonetheless, a defendant in Turner's position is not automatically entitled to a lawyer.

First, although the issue of ability to pay is important, it will often be fairly easy to show.

Even in a criminal case, a defendant who won't yet a have a lawyer has to provide information that shows that he's indigent before he can insist that the state give him a lawyer.

Second, what about the other parent who has owed child support?

Sometimes, the person who stands the benefit from child support enforcement is not the state but the other parent.

And that parent, say the mother, maybe relatively poor, unemployed, and be unable to afford counsel.

In such a case to give a lawyer to only one side, say the father, but not to the mother, could make the proceeding taken as a whole, less fair, not more fair.

Third, at the same time, we believe there are alternative procedures that could protect the defendant's rights with less risk of unnecessarily depriving the family of the child support payments that they need.

As the Solicitor General has pointed out, those alternatives include, notice to the defendant that his ability to pay is a very important issue, the use of a form or some other equivalent to elicit relevant financial information, an opportunity at the hearing for the defendant to respond to follow up questions, say by the judge, and an expressed finding by the Court whether the defendant does, or does not have the ability to pay.

We conclude that where as here the custodial parent, here, is the child's mother, is not represented by a counsel, the state need not provide counsel to Turner be a noncustodial parent who is supposed to pay the child support.

But we attach important caveat, namely that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical question, whether the father was or was not able to comply with the support order.

Here, South Carolina provided neither counsel nor alternative procedures.

Thus, Turner's proceedings were constitutionally defective.

We vacate the judgment of the South Carolina Supreme Court and we remand the case.

Justice Thomas has filed a dissenting Opinion in which Justice Scalia joins and in which the Chief Justice and Justice Alito join as to Parts I-B and II.